Blair's Case — Possess Child Porn — Withdrawn

Client:   Blair, Accused
Complainant:   Toronto Police Service
Charge:   Possession of Child Pornography, Criminal Code, s. 163.1(4)

Background:   In 1995, Blair’s unruly nephew was living with him. One evening Blair wasn’t home. The nephew threw a party. The noise was overwhelming. The neighbours called the police. The police entered and searched the apartment. They alleged that they found a pile of child pornography in the closet. The nephew said that Blair owned the pictures. Blair was charged with possession of child pornography.

Goals:   Blair hired me to beat the charge. He wanted to avoid a conviction and he wanted to avoid jail. He was prepared to take the case to trial if necessary.

Strategy:   One defence we had was that the pictures were not, in fact, child pornography. But we also had another angle. For some reason, the nephew was not listed as a witness. Without him or someone else to prove that Blair owned those magazines, the Crown would not be able to prove that Blair was "in possession" of the alleged child pornography. However, I could not raise this problem in my early negotiations with the Crown. If I did, the Crown might try to fix the problem, for example, by trying to serve the nephew with a subpoena, or by obtaining a statement from Blair’s landlord confirming where Blair lived. In the early negotiations, the Crown took an aggressive position. I said nothing about their potential problem with proving the possession. We had to be patient. I planned to tell the Crown about the problem at trial.

Results:   The trial was scheduled for May 1996. Two days before the trial, I received a telephone call from the Crown assigned to prosecute Blair’s case. She told me she had a problem. She asked if I would admit ownership of the pictures, and then we could argue about whether the pictures were, in fact, child pornography. I told her "no, thank you." She responded by saying that she would not be proceeding. The charge was withdrawn on the trial date.